WOO MAN FONG v. INCORPORATED OWNERS OF BROADVIEW COURT (SHUM WAN ROAD) AND OTHERS

CAMP 339/2021

[2021] HKCA 1598

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 339 OF 2021

(ON AN INTENDED APPEAL FROM LDBM 61 OF 2017)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

INTRODUCTION

1.  By summons dated 13 August 2021, the Applicant applied to the Court of Appeal for leave to appeal against the judgment of His Honour Judge Lo, Presiding Officer of the Lands Tribunal (“the Tribunal”), dated 20 November 2020[1] (“the 11/20 Judgment”), whereby the Tribunal refused the Applicant’s applications to:

(1)  review its earlier judgment dated 11 September 2019[2] (“the 09/19 Judgment”)  dismissing the Applicant’s application in LDBM 61/2017 (“the LT Application”), and

(2)  vary the costs order nisi made on 11 September 2019 that the Applicant should pay two-third of the costs of the 1^st Respondent in the LT Application.

2.  Although the 09/19 and 11/20 Judgments were written in Chinese, the Applicant’s summons and draft grounds of appeal, and the Applicant and 1^st Respondent’s respective submissions dated 13 August 2021 and 24 September 2021 are all written in English.  Accordingly, this Judgment is written in English, save where the court quotes directly from the 09/19 Judgment.

3.  Having considered the materials filed by the parties, the court considers that the present summons should be determined on the basis of written submissions without an oral hearing pursuant to Order 59, r 2A(5)  of the Rules of the High Court, Cap 4A.

4.  In what follows, unless the context indicates otherwise, references to “Section” or “s” shall be to the the Building Management Ordinance, Cap 344 (“the Ordinance”).

BACKGROUND

5.  The Applicant is the owner of Unit E, 37/F, Block 4 of Broadview Court, Aberdeen.  Woo Tak Yan, who is not an owner of Broadview Court, was the Applicant’s representative in the proceedings below before the Tribunal.  The 1^st Respondent is The Incorporated Owners of Broadview Court.  The 2^nd to 10^th Respondents were members of the management committee (“the Management Committee”)  of Broadview Court appointed at the owners’ meeting held on 15 January 2017 (“the 2017 Owners’ Meeting”).

6.  The respective cases of the Applicant and 1^st Respondent have been summarised by the Tribunal at §§6-16 of the 09/19 Judgment, as follows:

“申請人的案情

6.  於2016年1月9日法團舉行業主立案法團周年大會 (‘2016年業主大會’)，主席溫振誠[3] 先生於大會中途聲稱有人種票，而宣布有關委任文書失效，並即時休會。

7.  於2017年1月15日，法團再召開一次業主周年大會(‘2017年業主大會’)。

8.  胡先生認為2017年業主大會是2016年業主大會的延會，所有在2016年業主大會提交的委任文書都應該在2017年業主大會仍然有效。他又認為2017年業主大會並非由管理委員會召開，相關的會議通知亦未有根據《建築物管理條例》 (‘該條例’)  附表3第2節由秘書發出給業主。

9.  他又質疑有些委任文書 (‘該等委任文書’)  沒有依該條例附表3第4節送交秘書，由秘書發出相關確認收據，並展示該等委任文書的資料，核實並決定該等委任文書是否有效。故此，他認為該等委任文書屬無效。

10.   由於只有120多名業主親身出席，2017年業主大會不夠法定人數 (即157人)，該會議應被視為非法，而根據該會議的決議包括委任有關委員[4] 亦屬無效。

11.  胡先生又認為管理委員會罷免當時的秘書許雲薇女士及其後於2016年10月委任陳祥霖[5] 先生為秘書，是非法和無效的。

12.  此外，管理委員會沒有根據該條例第27條在2017年業主大會上提交財務報表及會計師報告予法團省覽。

13.  根據申請人的結案陳詞，她現在要求審裁處頒令如下:

(i)  2017年業主大會委任的管理委員會委員 (即第二至第十答辯人)  無效，並撤銷相關議決 (‘第一項要求’);

(ii)  委任申請人的代表胡先生為管理人 (‘第二項要求’)；

(iii)  管理委員會違反該條例第27(1)條的規定，並沒有在2017年業主大會上提交法團省覽財務報表連同會計師報告，故依該條例第27(3)條款處以第5級罰款 (‘第三項要求’)。

第一答辯人的案情

14.  基於有關的管理委員會已在2018年4月15日改選，即使在2017年業主大會出現任何問題，皆不會影響現時管理委員會，故此，2017年業主大會所委任的委員是否有效只是學術性問題。

15.  第一答辯人指出申請人並沒有要求審裁處根據該條例第31(1)條解散現時的管理委員會，申請人亦沒有解釋為何胡先生是一位合適的管理人人選。

16.  第一答辯人認為審裁處沒有司法管轄權根據該條例第27(3)條作出罰款的懲罰。”

7.  The Applicant applied to the Tribunal for the following order or relief ^[6]:

“(i)  The appointment of the management committee at annual general meeting (‘AGM’)  of 15.1.17 be illegal, the voting result thereof be invalid and be quashed;

(ii)  Appointment of [Woo Tak Yan as] administrator;

(iii)  A fine under S27(3)  [of the Ordinance] upon all MC members as a result of S27(1)  being contravened.” (hereinafter referred to as “the 1^st, 2^nd and 3^rd Relief” respectively)

8.  On 11 September 2019, after a contested trial, the Tribunal gave a judgment against the Applicant (ie the 09/19 Judgment):

(1)  In respect of the 1^st Relief, the Tribunal considered that the relevant complaint had become academic in view of the fact that the members of the Management Committee elected at the 2017 Owners’ Meeting had already left office and they were re-elected at the Owners’ Meeting held on 15 April 2018 (“the 2018 Owners’ Meeting”).

(2)  In respect of the 2^nd Relief, the Tribunal refused to appoint Woo Tak Yan as administrator, on the ground that the Applicant had not applied for the dissolution of the Management Committee, and had failed to produce any, or any sufficient, evidence to show that (i)  the Management Committee were unable to carry out their duties under the DMC and the Ordinance, and (ii)  Woo Tak Yan was an appropriate administrator to be appointed.

(3)  In respect of the 3^rd Relief, the Tribunal considered that it had no jurisdiction to impose a fine under s 27(3)  on the 2^nd to 10^th Respondents for breach of s 27(1), that being a prosecution matter falling within the responsibility of the relevant Government department or the Secretary for Justice.

The Tribunal held that the 3 relief sought by the Applicant were all unreasonable, and dismissed the LT Application (see §33 of the 09/19 Judgment).

9.  The Tribunal further considered that the Applicant ought in principle to pay the costs of the 1^st Respondent.  However, due to the fact that it refused the 1^st Relief on the ground that the relevant issue had become academic, and there were some factual disputes which the Tribunal did not resolve (because it was unnecessary to do so), the Tribunal decided to make an order nisi that the Applicant should pay only two-third of the costs of the 1^st Respondent (see §34 of the 09/19 Judgment).

10.  On 23 September 2019, the Applicant applied to the Tribunal for a variation of the costs order nisi, and on 2 October 2019, the Applicant applied for a review of the 09/19 Judgment.  On 20 November 2020, the Tribunal dismissed both applications with costs to the 1^st Respondent (ie the 11/20 Judgment).

11.  On 18 December 2020, the Applicant applied for leave to appeal the 11/20 Judgment.  On 30 July 2021, the Tribunal dismissed the Applicant’s application for leave to appeal with costs to the 1^st Respondent (“the 07/21 Judgment”).

THE PRESENT APPLICATION

12.  By the present summons dated 13 August 2021, the Applicant renewed her application for leave to appeal the 11/20 Judgment.

13.  In her draft grounds of appeal dated 13 August 2021, the Applicant advanced six intended grounds of appeal, which will be considered below.

DISCUSSION

14.  Under the Lands Tribunal Ordinance, Cap 17:

(1)  Subject to s 11AA and the provisions of any Ordinance relating to appeals from the Tribunal, any party to proceedings before the Tribunal may appeal to the Court of Appeal against a judgment, order or decision of the Tribunal on the ground that such judgment, order or decision is erroneous in point of law (s 11(2)).

(2)  Subject to s 11AA(2), no appeal may be made under s 11(2)  unless leave to appeal has been granted by the Tribunal or the Court of Appeal (s 11AA(1)).

(3)  Leave to appeal shall not be granted unless: (a)  the appeal has a reasonable prospect of success; or (b)  there is some other reason in the interests of justice why the appeal should be heard (s 11A(6).

15.  1^st intended ground of appeal: the Applicant complains that the Tribunal rejected the LT Application on grounds which were not pleaded by the 1^st Respondent, in particular:

(1)  certain issues had become academic;

(2)  the Applicant had not applied to dissolve the Management Committee, and there was no justification for the appointment of Woo Tak Yan as administrator; and

(3)  the Tribunal had no jurisdiction to impose a fine under s 27(3).

16.  In respect of (1), as pointed out by the Tribunal at §14 of the 07/21 Judgment, it was not in dispute that there was a re-election of the members of the Management Committee at the 2018 Owners’ Meeting.  Whether to grant the declaration sought by the Applicant in terms of the 1^st Relief regarding the validity of the appointment of members of the Management Committee at the 2017 Owners’ Meeting involved an exercise of discretion by the Tribunal.  In view of the fact that the Notice of Opposition of the 1^st Respondent was filed on 19 September 2017 (ie prior to the date of the 2018 Owners’ Meeting), obviously the fact of re-election of the members of the Management Committee in 2018 could not have been pleaded in the Notice of Opposition.  Although the 1^st Respondent could have applied to amend the Notice of Opposition to plead the fact of re-election of the members of the Management Committee, the Tribunal took the view that (i)  the Applicant had not suffered any relevant prejudice (see §15 of the 07/21 Judgment), and (ii)  the matter had become academic, and thus refused to exercise its discretion to grant the declaratory relief sought.  We consider that it was within the Tribunal’s discretion to refuse to grant the 1^st Relief in the circumstances of this case.

17.  In respect of (2), it was a matter for the Applicant to justify the appointment of Woo Tak Yan as administrator notwithstanding the existence of a working and functioning Management Committee in place.  The relevant provisions of the Ordinance state as follows:

“30 Dissolution of management committee and appointment of administrator

(1)  Subject to this section, the owners present at a meeting of the corporation convened under paragraph 1 of Schedule 3 may appoint an administrator and thereafter resolve that the management committee be dissolved.

31 Appointment of administrator by the tribunal

(1)  The tribunal may, upon application made to it by -

(a)  an owner;

(b)  a registered mortgagee (if any);

(c)  an administrator; or

(d)  the Authority or an authorized officer,

dissolve the management committee and appoint an administrator, or remove and replace an administrator, as the case may be.”

18.  The Tribunal took the view that it could not appoint an administrator without dissolving the management committee (see §25 of the 09/19 Judgment).  It also found that the Applicant had failed to produce any, or any sufficient, evidence to show that (i)  the Management Committee were unable to carry out their duties under the DMC and the Ordinance, and (ii)  Woo Tak Yan was an appropriate administrator to be appointed (see §§25-27 of the 09/19 Judgment).  These findings were open to the Tribunal to make, and are sufficient to support the Tribunal’s refusal to appoint Woo Tak Yan as administrator of Broadview Court.

19.  In respect of (3), s 27(3)  states as follows: “In the event of a contravention of subsection (1), every member of the management committee shall be guilty of an offence and shall be liable on conviction to a fine at level 5 unless …”.  It is clear that s 27(3)  creates a criminal offence for a contravention of s 27(1), which imposes on the management committee a duty to maintain proper books or records of account and other financial records of an owners’ corporation.  The jurisdiction to impose a penalty under s27(3)  vests in the criminal court, not the Tribunal.  The jurisdiction of the Tribunal is defined in s 8 of the Lands Tribunal Ordinance, which does not include any criminal jurisdiction (save in relation to the power to punish a person guilty of contempt under s 10(1A)  thereof).

20.  2^nd intended ground of appeal: the Applicant complains that the Tribunal ought to have ruled on the validity of the appointment of the members of the Management Committee and the voting results at the 2017 Owners’ Meeting, instead of considering whether the relevant relief sought (ie the 1^st Relief)  had become academic. This complaint is effectively the same one that has been considered in §16 above.  The Tribunal considered that there was no practical purpose or utility in determining the aforesaid issues raised by the Applicant because they had been rendered academic by the re-election of the members of the Management Committee at the 2018 Owners’ Meeting, and therefore declined to adjudicate on those issues.  In our view, the Tribunal was entitled not to entertain academic issues, or grant declaratory relief in respect of such issues.

21.  3^rd intended ground of appeal: the Applicant complains that the Tribunal wrongly placed the burden of proof on her without considering “relevant principle of relative probability that the Respondents’ evidence, if any fact and in fact nil, had not been assessed”.  As can be seen from the Applicant’s submissions dated 13 August 2021, this ground is directed at the Tribunal’s refusal to appoint Woo Tak Yan as administrator.  In our view, the Tribunal was correct to hold that it was for the Applicant to show that (i)  the Management Committee were unable to carry out their duties under the DMC and the Ordinance, and (ii)  Woo Tak Yan was an appropriate administrator to be appointed.  In light of the Tribunal’s finding that the Applicant had failed to adduce any, or any sufficient, evidence on these matters, we consider that the Tribunal was justified to refuse to make an order appointing Woo Tak Yan as administrator of Broadview Court, quite apart from the fact the Applicant had not applied to dissolve the Management Committee.

22.  4^th intended ground of appeal: the Applicant complains that the Tribunal was wrong not to exercise its jurisdiction to impose a fine under s 27(3)  on the members of the Management Committee.  This complaint has already been dealt with in §19 above.

23.  5^th intended ground of appeal: the Applicant complains that the Tribunal should not have approached the issue of costs by considering which party was the “effective winner” or dealt with costs on a “broad brush” basis, but should have adopted an “issue”, instead of “time”, based approach when considering the matter of costs.  Under s 12(1)  of the Lands Tribunal Ordinance, the costs of and incidental to all proceedings in the Tribunal are in the discretion of the Tribunal, and the Tribunal has full power to determine by whom and to what extent the costs are to be paid.  Generally speaking, the Tribunal has a wide discretion on the issue of costs.  It is only in rare situations that the Court of Appeal will interfere with the Tribunal’s exercise of discretion on costs, eg where the Tribunal has erred in principle or adopted an erroneous approach.  In this case, the Tribunal started with the general principle that costs should follow the event, and went on to reduce the Applicant’s liability to pay costs by one-third on account of the specific manner in which the LT Application was determined (see §24 of the 09/19 Judgment).  We do not see that the Tribunal erred in principle, or that there is any valid basis to disturb the Tribunal’s exercise of discretion on the issue of costs in this case.

24.  6^th intended ground of appeal: the Applicant’s complaint of apparent bias against the Tribunal is completely without basis or foundation, and must be rejected.

25.  In all, this court is of the view that the intended appeal has no reasonable prospect of success, and there is no other reason in the interests of justice why the appeal should be heard.

DISPOSITION

26.  The Applicant’s application for leave to appeal is refused, and her summons dated 13 August 2021 is dismissed, with costs to the 1^st Respondent to be summarily assessed by this court.  The 1^st Respondent has not lodged any costs statement in relation to the present application. Accordingly, we direct the 1^st Respondent to file and serve a costs statement within 14 days of the date of this judgment, and grant leave to the Applicant to file and serve a statement of objections (limited to 2 pages)  to the 1^st Respondent’s costs statement within 14 days thereafter.

27.  Since the application for leave to appeal is totally without merit, we make an order under Order 59, r 2A(8)  of the Rules of the High Court that no party may request the present determination to be reconsidered at an oral hearing inter parties.